England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Lightman)

		Royal Courts of Justice Strand London WC2 Friday 1st March, 2002

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal the decision of Lightman J dated 24th January 2002 which gave summary judgment in favour of the respondent, the Chancellor, Masters and Scholars of the University of Oxford ("the University"). The applicant is Mr Andrew Malcolm who in these proceedings, which he started on 8th August 2001, alleged breach of a term of a consent order concluded in 1992 in the Tomlin form. I will come later to the terms of that consent order.
2. The basic facts are not in dispute and can be taken from the judgment of the judge. Mr Malcolm wrote a philosophical work entitled "Making Names". He submitted it to the Oxford University Press ("OUP"), which is a department of the University, with a view to the OUP agreeing to publish it. It was submitted by OUP to Dr Alan Ryan, then a fellow of New College Oxford and an OUP delegate. In two reports dated 11th February 1985 and 18th July 1985 he recommended that the OUP should publish it. But in February 1986, after the work had been revised and improved, Dr Ryan changed his mind and recommended that the work should be rejected. OUP acted on that recommendation. A dispute then arose as to whether a contract had already been concluded between Mr Malcolm and the University for publication of the work.
3. On 23rd December 1986 Mr Malcolm commenced an action against the University seeking a declaration that a contract had been concluded. He also claimed specific performance and damages for breach of contract. The University defended the action, denying that any contract had been concluded. The trial came on before Lightman J in March 1990. He held that no contract had been concluded. Mr Malcolm appealed, and this court allowed his appeal and upheld his claim. Specific performance was refused, but an order was made for an assessment of damages. The assessment came before Master Barratt, who assessed the damages at £17,947.13. On 19th November 1991, on an application by the University, Master Barratt ordered a reduction of £502.40.
4. While the hearing of the appeals and cross-appeals was outstanding, on 1st July 1992 the parties came to an agreement which was set out in the schedule to the consent order. The relevant parts of the consent order were in these terms:

"7. The Defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names. For the purpose of giving effect to this undertaking, the Defendants may disclose the text of this term to their servants and agents from time to time. The Defendants further agree to request Alan Ryan, Henry Hardy and Richard Charkin not to publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names.

8. The undertakings contained in Paragraphs 6 and 7 hereof are of unlimited duration."

5. In August 1992 Mr Malcolm, at his own cost, published the work. On 1st December 1996 Dr Ryan returned to Oxford to take up his post of Warden of New College, and in about 1997 the University conferred upon him the title of professor and he was appointed Chairman of the Conference of Oxford Colleges for a period expiring on 30th September 1999.
6. On 13th April 2001 The Times Higher Education Supplement ("The Times Supplement") published as its lead letter, a letter from Dr Ryan about Mr Malcolm's book. So far as material, the letter read as follows:

"... the [work] wore badly on re-reading; what had seemed fresh, lively and amusing seemed course and jeering the third time round. Perhaps the reading climate had changed, perhaps it was always a book that should be read once only. But I never changed my initial view: that OUP should have published a thousand copies and seen if they sold - the press was not poor and a few quid on an outsider was a worthwhile bet."

7. The publication of that letter prompted Mr Malcolm to commence this action against the University. Mr Malcolm maintained that the publication of the 13th April letter constituted a breach by the University of paragraph 7 of the consent order. He claimed an injunction restraining the defendants, their servants and agents or any of them, and in particular Dr Ryan, from committing further breaches of the Tomlin schedule and also his costs.
8. The University asserted that the claim brought by Mr Malcolm disclosed no cause of action. In particular, they alleged that Mr Malcolm had not alleged, and could not properly or successfully allege, that the publication of the letter constituted a breach of paragraph 7 of the consent order.
9. The judge held that there was no prospect of Mr Malcolm's claim succeeding. He concluded that the Chancellor, Masters and Scholars of the University of Oxford was the corporate name of the University, which is a civil corporation established under common law and formally incorporated by statute in 1571. The OUP was a department of the University, but the colleges of Oxford were charitable corporations and legally distinct from the University. The University could confer on persons the title of professor as distinction and appoint them to represent it on certain University functions. However, that did not make them persons who were under a contract of employment by the University.
10. The judge then came to construe the consent order. He concluded:

"22. ... First a publication or solicitation by the Chancellor, a Master or a Scholar acting in a private capacity will not constitute a publication or solicitation by the body corporate, the University. Second, the paragraph does not (as Mr Malcolm argues) extend to `officers' of the University (if there are any officers of the University) unless they also constitute servants or agents. The fact that the term `officer' was used in the negotiations cannot assist him. The term is not used in the Consent Order. Third, the specific provisions relating to Dr Ryan, Mr Hardy and Mr Charkin make it plain that, unless at the date of the solicitation or publication they fall within the category of servants or agents, the University is subject to no liability in respect of any solicitation or publication by them: Mr Malcolm has merely the benefit of a request by the University to them not to publish, a request which may be ignored with impunity.

23. The term `servant' means an employee under a contract of service, thus excluding an independent contractor. A person who is not employed by the University but is paid for services rendered, e.g. giving lectures or supervising students, is not a servant of the University. The term `agent' means a person entrusted with the fulfilment of a role or performance of a task on behalf of his principal, usually involving or affecting the legal relations of the principal with a third party.

24. The prohibition in paragraph 7 cannot be construed as imposing liability on the University if any of its servants or agents (whatever their employment or function) publish or solicit the publication of a derogatory statement, e.g. if the servant or agent is a member of the maintenance or catering staff or a messenger. The question raised is the category of servant or agent engaged by paragraph 7 and the relationship required between the employment or agency and the solicitation or publication. ...

...

35 ... it is not possible, and indeed it would be wrong, to construe the Consent Order (as he wishes) as effective to muzzle academic freedom of expression and debate and censor any disparagement of the Work by academics at the University unless such disparagement is prompted or authorised by the University. The practical reality is, as it seems to me, that the re-emergence in Mr Malcolm's life on his return to Oxford of Dr Ryan (who had the leading role in the University's damaging decision to refuse publication of the Work) as author of the Letter has understandably fuelled on his part a deep resentment and suspicion of the University. But the Consent Order has not never afforded Mr Malcolm protection from the expression of his adverse views by Dr Ryan."

11. The judge went on to conclude that Dr Ryan was a distinct person from the University and was acting on his own behalf and was not a "servant" or "agent". In those circumstances, he concluded that the action was bound to fail. The judge refused permission to appeal.
12. Mr Malcolm appeared before me in person. As is made clear in his skeleton argument, Dr Ryan is a distinguished academic at Oxford. One only has to have recourse to paragraph (g) of the skeleton argument to see that at the time of writing the April letter he was Deputy Chairman of the University's Joint Undergraduate Admissions Committee, Deputy Chairman of the University Admissions Executive Sub-committee, Chairman of the University's Equal Opportunities Committee, a Member of the Committee for the University's Career Service, a Director of the University's Rothermere American Institute, a Member of the Electoral Boards for the Appointment to University Professorships associated with New College and the Rothermere American Institute, a Member of the University Congregation and Warden of New College Oxford.
13. Mr Malcolm in his skeleton argument drew attention to the fact that the judge had misquoted paragraph 7 of the consent order. In so far as he did, the difference between that quoted by the judge and the relevant clause is immaterial. The judge went on to give his reasons as to why he had concluded Mr Malcolm's case had no chance of success.
14. Mr Malcolm's second contention was that the judge had wrongly construed paragraph 7 of the order to be limited to those letters which were prompted or authorised by the University. Mr Malcolm submitted that this was clearly not the intention of parties to the contract in 1992. That intention could be derived from the opening parts of paragraph 7 of the consent order and from the contextual correspondence to which he referred. He submitted that the construction adopted by the judge afforded him no more protection than if it had said, "The defendants agree not to publish or solicit the publication of any derogatory statement." If so, he submitted the clause did not afford protection to his literary reputation and the construction robbed the consent order of any mutuality.
15. Although in his skeleton argument Mr Malcolm referred to a number of documents leading up to the making of the consent order, I do not believe that they can throw light on its construction. In any case I do not believe they are admissible for that purpose.
16. The clause is clear. By paragraph 7 the defendants agreed that they themselves and their servants and agents or any of them would not publish or solicit. There can be no doubt that by referring to themselves, using the word "they", they were referring to the corporate body which I have referred to as "the University". The word "servant" means persons under a contract of service and "agents" means persons acting as agents for the purpose of publication of letters and articles of the type contemplated by paragraph 7. As a corporate entity the University does not, in general, act otherwise than through its servants and agents. Mr Malcolm may well be right that in practice the agreement only prevents the defendants from publishing or soliciting, and that the words "their servants and agents, or any of them" add little or nothing of practical importance. Even so, I have no doubt the judge correctly construed the clause.
17. Mr Malcolm in his oral submissions concentrated at the outset upon the word "agents". He referred me to the statement by the judge in paragraph 30, to which I have referred. He drew attention to the fact that the word "agents" was used in two places in paragraph 7. He submitted that if the word meant only persons authorised to write the letter, then that made nonsense of the second use of the word "agent" in paragraph 7. He is partly right. The word "agents" cannot include all agents of the University, such as who purchase land or the like. It has to be construed in context. The word "agent" means, as the judge said in paragraph 23 of his judgment:

"... a person entrusted with the fulfilment of a role or performance of a task on behalf of his principal, usually involving or affecting the legal relations of the principal with a third party."

18. To that has to be added the context in which the word is used in this clause. The context is concerned with statements, letters and articles about works. In those circumstances, the type of agents are those persons who act on behalf of the University in making statements, writing letters or articles about works such as the work of Mr Malcolm.
19. Mr Malcolm told me that the aim of paragraph 7 was to prevent individuals writing derogatory letters. If that was his aim it was not drafted in a way that would achieve the aim. It left open - and I suspect rightly left open - the academic freedom of persons who were not acting in the capacity as agents of the University to write letters of criticism about a work such as "Making Names". I cannot believe that Mr Malcolm, who has written a serious work, would want to stifle academic criticism properly made. Certainly such an attitude would be contrary to the attitude which is normally accepted by the authors of the type of book which his is.
20. Mr Malcolm also suggested the word "servants" should be giving a wider meaning than that given by the judge. He submitted that in the circumstances of this case Dr Ryan was a servant. He drew a salary for his teaching and in those circumstances was providing a service. He did not actually refer me to any particular authority, but did read from Clark and Lindsell and drew attention to at least two of the indicia of a contract of service that was present in this case.
21. MR MALCOLM: My Lord, forgive me, the Indian - I did refer to the Indian case or the Sri Lankan case.
22. LORD JUSTICE ALDOUS: Do not worry. Mr Malcolm also referred to a Sri Lankan case, of which I do not know the name because he did not give me the copy.
23. I therefore turn to consider whether Dr Ryan when he wrote the letter that was published in The Times was acting in his capacity as a servant of the University or was acting as their agent. In my view, there is no doubt that he was not. There was no evidence that when he wrote the letter he was acting as agent for the University. He was acting in a private capacity. The fact that he held a number of important appointments concerned with University business and the fact that he could, in certain circumstances and obviously did, act as the agent of the University, did not mean that in this respect he was acting as their agent.
24. Further, it cannot be doubted that he was not acting as their servant. Firstly, he was not employed by them and he was certainly not employed by them to write statements, letters or articles about works. Therefore he was not acting as the University's servant when he wrote the letter.
25. Mr Malcolm also submitted in his written submissions that Dr Ryan was personally named in the consent order and was obviously its prime intended target, and therefore the words "the defendants agree that they, their servants and agents or any of them" should cover at least Dr Ryan. That submission must also fail. It is clear that Dr Ryan was not a defendant to the proceedings. He could have been acting as an agent of the OUP at the time when he gave advice. But when he wrote the letter in April that was not the position.
26. Mr Malcolm also submitted that the judge was wrong to conclude that the University's Vice-Chancellor and Pro-Vice-Chancellors were not also the "servants and agents" of the University' in the sense that those words were used in paragraph 7 of the order. That submission is also wrong. The word "servant" must mean those under a contract of service, and must refer to them when they were acting as servants of the University. Thus the fact that somebody was under a contract of service, whether he be a gardener or other person, does not necessarily mean that he falls within paragraph 7 of the agreement.
27. In my view, the issues that Mr Malcolm would wish to argue before this court are in fact simple ones. First, what is the meaning of "servants and agents" in the consent order? That, as I have said, is clear. Those words cannot be given a wider meaning than their normal meaning, namely those persons under a contract of service or under an obligation of agency and, as the judge pointed out, acting in the capacity in which the context of the clause is drafted. The next question is whether Dr Ryan at the time he wrote the April letter fell within that category. He did not.
28. In my view Mr Malcolm's appeal, if I granted permission, would have certainly failed. I would not be doing him any favour by granting permission to appeal. He would have ended up paying costs, which probably would have meant paying another £10,000.
29. Finally, Mr Malcolm in his Appellant's Notice raises a query on the ambiguity of the order for costs. He has not addressed me orally on the matter. I have looked at the order and it seems to me clear. In any case, I do not anticipate that the costs judge will have any difficulty in dealing with it.
30. In those circumstances, I refuse permission to appeal.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)